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Uneasy Neighbors: Comparative American and Canadian Counter-Terrorism Kent Roach William Mitchell Law Review Volume 38 | Issue 5 Article 12 2012 Uneasy Neighbors: Comparative American and Canadian Counter-Terrorism Kent Roach Follow this and additional works at: http://open.mitchellhamline.edu/wmlr Part of the Military, War, and Peace Commons, and the National Security Law Commons Recommended Citation Roach, Kent (2012) "Uneasy Neighbors: Comparative American and Canadian Counter-Terrorism," William Mitchell Law Review: Vol. 38: Iss. 5, Article 12. Available at: http://open.mitchellhamline.edu/wmlr/vol38/iss5/12 This Article is brought to you for free and open access by the Law Reviews and Journals at Mitchell Hamline Open Access. It has been accepted for inclusion in William Mitchell Law Review by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact [email protected]. © Mitchell Hamline School of Law Roach: Uneasy Neighbors: Comparative American and Canadian Counter-Terro UNEASY NEIGHBORS: COMPARATIVE AMERICAN AND CANADIAN COUNTER-TERRORISM Kent Roacht I. INTRODUCTION........................................ 1702 II. CANADA AND THE UNITED STATES BRIEFLY COMPARED...... 1708 A. Attitudes Towards the State ......... ............ 1708 B. Multiculturalism ................................. 1712 III. THE PRE-9/11 EXPERIENCE WITH TERRORISM IN CANADA AND THE UNITED STATES.......................... 1713 A. The CanadianExperience................ ....... 1713 1. The October Crisis .............. ................ 1714 2. The Air India Bombings and Failed Terrorism Prosecutions ........................ ..... 1716 3. The Ahmed Ressam Case............. ........... 1718 B. The American Experience.................... 1720 1. The Military Tradition ...................... 1721 2. Successful CriminalProsecutions................ 1723 3. Executive Dominance and Extra-Legalism.... ..... 1724 4. Summary ......................... ...... 1728 IV. MAHER ARAR: CONTRASTING CANADIAN AND AMERICAN APPROACHES .................................... ..... 1729 A. The CanadianExperience................ ....... 1730 1. Problematic Canadian Cooperation with American Post-9/11 Security Efforts... ................. 1730 2. "Caveats are down:" Post 9/11 Information Sharing.. 1732 3. The Public Inquiry............. ............. 1735 4. The 2003 Monterrey Protocol. ............ ..... 1738 B. The American Experience.. ..................... 1739 1. Continued Watch-listing ofArar.... ............... 1739 t Professor of Law and Prichard and Wilson Chair in Law and Public Policy, University of Toronto, B.A. LL.B (Toronto); LLM (Yale), F.R.S.C. I thank David Cole, Amos Guiora, Audrey Macklin, Trevor Morrison, Sudha Settty, Mathew Waxman, and Stephen Vladeck for comments on an earlier version of this paper. I also thank Stephen Vladeck and other participants at a faculty roundtable at American University Law School where an earlier version of this paper was given. 1701 Published by Mitchell Hamline Open Access, 2012 1 William Mitchell Law Review, Vol. 38, Iss. 5 [2012], Art. 12 1702 WILLIAM MITCHELL LAW REVIEW [Vol. 38:5 2. The Homeland Security Inspector General's Report ...... 1742 3. Maher Arar's FailedAttempt at Civil Redress.............. 1744 4. Summary ........................ ....... 1747 V. THE KHADR FAMILY AND CANADIAN-AMERICAN RELATIONS1749 A. Guantanamoand CanadianAlternatives to the Criminal Law Compared.............................. 1750 B. CanadianLitigation with Respect to Omar Khadr............ 1753 C. American Proceedingswith Respect to Omar Khadr.......... 1759 1. Federal Court Proceedings ............ ........ 1759 2. Military Proceedings ........................... 1762 D. CanadianRejection of the Attempt to ExtraditeAbdullah Khadr to the United States.............................. 1769 E. The Distinct Challenges of Canadian Terrorism Prosecutions......................... 1779 F Summary ......................... ......... 1787 VI. NEIGHBORS STILL: POST-9/11 AMERICAN-CANADIAN SECURITY AGREEMENTS ........................... 1790 A. The 2001 Smart Border Agreement..... ................ 1790 B. The 2011 PerimeterSecurity Agreement ............. 1792 VII. CONCLUSION ............................ ..... 1794 I. INTRODUCTION The United States and Canada are dependent on each other in security matters by virtue of their shared border. Many in the United States believed widespread but false reports that some of the 9/11 terrorists had entered the United States through Canada. These reports were plausible because would-be millennium bomber Ahmed Ressam was apprehended by an alert American customs official in late 1999 entering the United States from Canada. Both the Ressam case and the false reports about the 9/11 terrorists help explain why part of the U.S. Patriot Act is entitled "Protecting the Northern Border."' Both countries responded to 9/11 with new antiterrorism laws, governmental reorganization, and increased spending on security. Concerns about keeping the border open but secure motivated a thirty-point Smart Border Declaration signed by Canada and the United States in late 2001 that focused 1. Uniting and Strengthening America by Providing Appropriate Tools to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, H.R. 3162, 107th Cong., tit. IV, subsec. A (2001). http://open.mitchellhamline.edu/wmlr/vol38/iss5/12 2 Roach: Uneasy Neighbors: Comparative American and Canadian Counter-Terro 2012] UNEASY NEIGHBORS 1703 on better screening and preclearance of goods and people crossing the border. It also led to the Safe Third Country Agreement that generally prohibits refugee applicants present in either country from applying to the other. 2 A decade later, the two countries have agreed to a new action plan for perimeter security. Despite the close and intensified cooperation over the last decade, there have been some major irritants that underline differences between American and Canadian counter-terrorism and have made Canada and the United States uneasy neighbors. Maher Arar, a Canadian citizen born in Syria, was detained in the United States in 2002 as he was returning home to Canada. He was subsequently rendered to Syria where he was tortured and detained for almost a year before being allowed to return to Canada. Arar was exonerated in 2006 by a Canadian public inquiry conducted by a respected judge4 and the Canadian government settled his civil claim for $10.5 million. Arar became a national hero in Canada,' but he remains on American watch-lists. His civil claim against 6 American officials has been dismissed by American courts, and a heavily redacted Inspector General's report examining his 2. Canada-U.S. Smart Border Declaration: Building a Smart Border for the 21st Century on the Foundationof a North American Zone of Confidence, FOREIGN AFF. & INT'L TRADE CANADA (Dec. 12, 2001), http://www.international.gc.ca/anti-terrorism /declaration-en.asp; see Safe Third Country Agreement, U.S.-Can., Dec. 5, 2002, available at http://www.cic.gc.ca/english/department/laws-policy/safe-third.asp. 3. UNITED STATES-CANADA BEYOND THE BORDER: A SHARED VISION FOR PERIMETER SECURITY AND ECONOMIC COMPETITIVENESS (2011) [hereinafter PERIMETER SECURITYACTION PLAN], available at http://www.whitehouse.gov/sites /default/files/us-canada btb action-plan3.pdf. In advance of this agreement, Canada enacted a law allowing advance airline passenger information required by the United States to be disclosed despite Canadian privacy legislation. See Strengthening Aviation Security Act, S.C. 2011, c. 9 (Can.), available at http://lawsjustice.gc.ca/eng/AnnualStatutes/2011_9/page-1.html. 4. COMMissioN OF INQUIRY INTO THE ACTIONS OF CANADIAN OFFICIALS IN RELATION TO MAHER ARAR: ANALYSIS AND RECOMMENDATIONS (2006), available at http://www.pch.gc.ca/cs-kc/arar/arar-e.pdf, [hereinafter COMMISSION OF INQUIRY ANALYSIS AND RECOMMENDATIONS]. The author served on the research advisory committee of this inquiry. 5. He has won several awards and now runs an online magazine on security matters at PRISM MAGAZINE, http://prism-magazine.com/ (last visited Apr. 14, 2012). Maher Arar received a nation-maker of the year award from Canada's national newspaper in 2006 along with Sergeant Patrick Tower, a soldier decorated for bravery in combat in Afghanistan. Rod Mickleburgh, Sgt. Patrick Tower and Maher Arar, 2006, THE GLOBE & MAIL, Dec. 30, 2006, www.theglobeandmail.com/news/national/nation-builder/sgt-patrick-tower-and- maher-arar-2006/article862861. 6. Arar v. Ashcroft, 585 F.3d 559, 563 (2d Cir. 2009). Published by Mitchell Hamline Open Access, 2012 3 William Mitchell Law Review, Vol. 38, Iss. 5 [2012], Art. 12 1704 WILLIAM MITCHELL LAW REVIEW [Vol. 38:5 treatment makes no attempt at examining the merits of the intelligence that identified him as a security threat.' The contrasting approaches to Arar play into the stereotypes of Canada being concerned about human rights to the point of being unable to respond to perceived security threats and the United States being vigilant about security risks to the point of abusing human rights.8 The Arar story is not simply a difficult chapter in the history of American-Canadian security relations. It has considerable symbolic resonance in Canada in part because it brings together Canada's concerns about human rights and multiculturalism. The Arar story has become part of Canada's security memory and perhaps even its constitutional culture.9 At the same time, the American rendition and continued watch-listing of Arar has not stopped the two countries from agreeing to increased
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